In PETTKUS V. BECKER (a 1980 Supreme Court decision), a 19-year old common law relationship had ended acrimoniously. During the relationship, Mr. Pettkus had developed a thriving beehive operation and when the relationship ended, Ms Becker claimed half of it. Becker's salary had gone towards numerous "family" expenses such as meeting ongoing expenses while Pettkus was able to save his income, which went towards the purchase of the bee-hiving farm. Ms Becker's first argument was that an implied trust had developed in the farm and in which resulted her half-interest. If this was not the case, then she argued that a constructive trust of unjust enrichment had developed. These trusts are court-imposed and are designed to cure injustices where three conditions are met: where (1) someone has benefitted (2) at the expense of another and (3) the enrichment is "unjust" or without legal justification.

Decision: Ms Becker was given a 50% share of the farm and beehive operation. Justice Dickson writing for the majority and in a brilliant display of legalese, said: "where one person, in a relationship tantamount to spousal, prejudices herself in the reasonable expectation of receiving an interest in property, and the other person in the relationship freely accepts benefits conferred by the first person in circumstances where he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retain it." Since this decision, most Canadian provinces have passed legislation which recognizes common law relationships and establishes support standards for them.

The Supreme Court 1993 decision of PETER V. BEBLOW is known as a "lawyer's decision" because of its technical characteristics. In this case, Canada's highest court again considered the unjust enrichment constructive trust in family situations. While all the justices of Canada's Supreme Court agreed to impose a constructive trust on Mr. Beblow to the benefit of his ex-common-law spouse, Ms Peter, they fought a furious written battle in their decision. A minority decision written by Justice Cory attempted to water-down the doctrine of unjust enrichment in family cases by concocting a number of presumptions.

Decision: the majority refused to go along insisting that the common law principles of unjust enrichment, even as they would exist in commercial law environments, transpose perfectly well to family law cases and no presumptions were required nor should they be concocted. The majority added two new principles to be followed in family cases of unjust enrichment: (1) that the courts retained the option of imposing a monetary award instead of imposing a constructive trust and (2) before imposing a constructive trust, monetary compensation must be shown to be inadequate and the connection between service rendered and the property must be direct and sufficient.

In MOGE v. MOGE, a Polish couple married since the mid-fifties, separated in 1973 and divorced in 1980. Mr. Moge paid child and spousal support during the separation and at the time of divorce, reduced it to just spousal support and child support for the one remaining minor child. The wife lost her hotel cleaning job in 1987 and she applied and received an increase in spousal support. She then found a part-time job and in 1989 Mr. Moge applied to have spousal support cancelled. One of the reasons was that Mrs. Moge, in 16 years since the separation, had failed to achieve economic self-sufficiency.

Decision: The Supreme Court of Canada published their decision in 1993. Claire l'Heureux-Dubé for the majority said that while the Divorce Act does include self-sufficiency as an objective of spousal support, the Divorce Act does not ask spouses to "sink or swim"; this is not the paramount objective, but one of four. Each case should be decided on its merits but where economic disadvantage continues to be experienced by a spouse as a consequence of the marriage and its breakdown, where she suffers a material change in circumstances which is causally related to the marriage or its breakdown, continued support, even after many years, is appropriate. Mrs. Moge was granted increased support.

CANADA V. MOSSOP: In this 1993 Supreme Court of Canada decision, Brian Mossop took a day off from his federal public service job to attend the funeral of his homosexual spouse's father. Mossop and his "lover" had been living together for 10 years. The Canadian government personnel policy allowed for bereavement leave but only for heterosexual spouses. His leave application was denied on that basis and he applied to the Canadian Human Rights Commission. The Commission ordered the Canadian government to change its policy as it discriminated against Mossop on the basis of his "family status", a prohibited grounds of discrimination under the Canadian Human Rights Act. The Canadian government appealed to the Federal Court and won. Mossop then appealed to the Supreme Court of Canada.

Decision: the Supreme Court split on the issue, ruling 4-3 in the Canadian government's favour. Four of the judges felt that Mossop's real complaint was discrimination based on sexual orientation, which was not, at that time, a prohibited grounds of discrimination and therefore, the refusal of bereavement leave was justified under Canadian human rights legislation.

In RE LAYLAND V. ONTARIO, two homosexual men showed up at the Ottawa City Hall and requested a marriage license for themselves. It was denied. The two applicants sued the Ontario Minister responsible for the issuing of marriage licenses and the federal government on the grounds that the acknowledged common law prohibition of homosexual couples from marriage violated their rights under the Charter at section 15 which prohibits discrimination based on "sex".

Decision: the first level Ontario Court that heard the case was composed of three judges. In a 2-1 decision, the court confirmed "that under the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman". With regards to the Charter challenge, the judges concluded that there was no discrimination: homosexual couples were free to marry provided they find a partner of the opposite sex so inclined!

ANDERSON V. LUOMA was a British Columbia Supreme Court decision in which a ten-year lesbian relationship ended in 1984. With Ms Luoma's knowledge, and fulfilling a personal desire to have children, Ms Anderson was been twice artificially inseminated during the relationship, bearing two children. When Ms Luoma ended the relationship in 1984, Ms Anderson sued her for spousal and child support.

Decision: the BC Court had little choice but to deny both application for support. The provincial Family Relations Act defined common-law "spouse" so as to preclude homosexual partners. Nor could the court find any relief under common law deeming the children to be essentially illegitimate. Finally, the plaintiff tried to argue that a contractual relationship existed between her and her ex-partner in which a support obligation existed. But, again, the court decided that the defendant never did agree, implicitly or explicitly, to raise the children. "There was no intention," wrote the judge, "by the parties to enter into a binding legal contract."

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Duhaime Lawisms

Set aside justice and what are kingdoms but enterprises of robbery.
St. Augustine, City of God, Book 4

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.